Thoughts on the Supreme Court ruling

Author: Rick Garnett and Lloyd Mayer

President Obama and others have criticized the January 21, 2010, Supreme Court decision, which overturns certain restrictions on corporations contributing to political campaigns. We asked Notre Dame Law professors Rick Garnett and Lloyd Mayer for their thoughts on the implications of the court’s decision.

Supreme Court’s decision misunderstood

By Rick Garnett

The Supreme Court’s recent decision in the Citizens United case — in which the court, by a 5-4 vote, struck down certain federal restrictions on “electioneering” and political advertising – has been widely criticized, but seems also to be widely misunderstood, or even misrepresented.

To some, the decision represents little more than a gift from the “conservative” justices to the Republican Party. In fact, there is nothing particularly “conservative” about the court majority’s view that the First Amendment should prevent the government from regulating the content of political debate and, what’s more, it is not at all clear that the decision will favor one party and its causes more than the other and its. Some corporations will find it in their interest to oppose new banking regulations, others will find it in their interest to support new funds for embryo-destructive research and “green” technologies; some look like the Sierra Club, others look like the Chamber of Commerce.

Other critics fear that the decision will open the (imagined) floodgates that formerly protected our politics from the baleful influence of “corporate” money, persuasion, and influence. As my colleague, Prof. Lloyd Mayer explains, though, these concerns are probably both premature and overstated. There is no way to keep money out of politics — nor is it clear that we should want to — and it could well be that the Citizens United decision will simply make more transparent what is already happening.
Still another line of attack, though, has been to charge that the court has, in Dr. Frankenstein-like fashion, confused artificial persons with real ones, that it has — as one political cartoon put it — substituted “We the Corporations” for the Constitution’s “We the People.” As Justice Stevens put it, in his (strongly) dissenting opinion, “corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.” So, why would the court think they enjoy the “freedom of speech” protected by the First Amendment?

We should think about the matter in another way. The “freedom of speech” is not merely something that people have or exercise individually, in order to express themselves or further their own projects. It is also a practice whereby people associate, affiliate and cooperate in pursuit of shared, long-term goals and goods. The court’s point in Citizens United is not that corporations are “the same as” people; it is, instead, that people often do, and long have, exercised the “freedom of speech” to challenge government, and convince their fellow citizens, using the corporate form. The fact that ideas enter the political conversation through one vehicle — the speech and advertising of associations, groups and corporations — does not make it less worthy of protection than ideas that are promoted by wealthy and powerful individuals such as Oprah Winfrey, Ted Turner or Curt Schilling.

The court has — correctly, I think — emphasized, in a wide variety of contexts, that a central concern of its First Amendment doctrine should be preventing efforts by government to distort the content of public conversations, and especially of the political debate. Even well-meaning officials, who worry about the corrupting influence of money and about preserving opportunities for those without power to nevertheless be heard, cannot, at the end of the day, be trusted to decide how much speech is too much, or when one speaker has said enough, or which speakers are more authentic and representative than others.

And so, we should think about the First Amendment not only as something that is held and enjoyed by speakers — individuals and corporations alike — but also as a constraint on government regulation. The First Amendment is not just a right, it is also a rule — a rule that forbids attempts by officials to decide which political messages and speakers are desirable and which are not. In a society committed, as ours is, to the freedom of speech, it is the citizens who are charged with the responsibility of evaluating the persuasiveness and other merits of political arguments. Natural people are, of course, free to discount the advocacy of artificial ones, just as they are free to give short shrift to what they regard as the biased arguments of sports starts, pop singers, media moguls and grandstanding politicians. Governments, however, should not purport to make these decisions for us.

An authority on Constitutional law, Associate Dean and Professor of Law Rick Garnett served as a clerk to Supreme Court Chief Justice William H. Rehnquist, before joining the Notre Dame faculty.

Worst-case scenarios from Supreme Court decision unlikely

By Lloyd Mayer

The Supreme Court’s much anticipated decision in Citizens United v. FEC did exactly what many free speech advocates hoped and campaign finance reformers feared — it struck down the more than 60-year old federal election law barring corporate spending to support or oppose candidates. The 5-4 decision also implicitly strikes down similar state election law limits, as well as federal and state limits on labor union election spending. The only silver lining for supporters of campaign finance regulations is that the court left in place — by an 8 to 1 margin — the requirement that corporations have to disclose some aspects of such spending publicly.

The decision was hardly a surprise. Last summer the court ordered re-argument in Citizens United for the express purpose of reconsidering its earlier decision that had upheld the bar on corporate political spending. In some ways the lack of surprise may have been detrimental, in that supporters of campaign finance laws have had months to imagine the worst case scenarios that might result.

There are several reasons why these worst case scenarios are unlikely. First, the decision does not threaten the longstanding prohibitions on corporate contributions to candidates or probably even the more recent prohibition on such contributions to political parties. The Supreme Court did not disturb the reasoning behind the decisions supporting those prohibitions, which rested on the governmental interest in preventing quid pro quo corruption and the appearance of such corruption. The court instead concluded that when a corporation spends money independently, that is, not in coordination with candidates or parties, no such risk credibly exists.

Second, corporations were able to engage in a significant amount of election-related spending even before this decision. A majority of states do not prohibit or limit such spending with respect to state and local elections, including California, Florida and Illinois, yet corporate spending has not dominated spending on such elections in those states. The limits on such spending also only applied to communications that “expressly advocated” for the election or defeat of a candidate and to certain other communications aired within a limited time window before an election. Not surprisingly, corporations (and their lawyers) found numerous ways to create ads that did not fall within these limits and yet still sent a clear message to voters.

The decision therefore does not mean we will suddenly see a flood of election spending by big corporations such as GE or Microsoft. A more likely scenario is that smaller corporations, without the resources needed to legally avoid the prohibitions that Citizens United overturned, may now enter the election arena. Even their spending will likely not be for buying political ads directly, if only to avoid alienating customers and shareholders (since the disclosure provisions survived), but will instead be for contributions to politically active tax-exempt nonprofit organizations such as chambers of commerce and trade associations. What we can therefore expect to see is more election ads from such groups, and from labor unions and nonprofit advocacy organizations.

The most significant likely effects of this decision will be more subtle. First, the decision will further the shift in electoral power away from candidates and political parties, both of which still face sharp limits on their ability to raise funds for elections, to 527s and other independent groups that now appear to be able to receive unlimited amounts of corporate and union money. Since such groups tend to be more aggressive in their messages than candidates and parties, this shift may increase electoral mudslinging as well the sheer number of ads. Second, the biggest impact of the decision may be on state and local elections where a single corporation or union may be able to swamp candidate and political party spending in a given race.

At the end of the day, the key question will be whether we the voters, who are the targets of all this spending, will be able to rise to the challenge of filtering this increased volume of messages. Regardless of how much corporations can and do spend, it is up to us as individual citizens, not any corporation or union, to decide which candidates we elect.

Associate Professor of Law Lloyd Hitoshi Mayer is an expert on election law and nonprofit organizations. His further thoughts on the Citizens United case can be found in an article he wrote previewing the decision, Breaching a Leaking Dam?: Corporate Money and Elections, 4 Charleston Law Review 91 (2009).